New York State Court of Claims

New York State Court of Claims

PICHARDO v. THE STATE OF NEW YORK , #2004-028-516, Claim No. 106211, Motion No. M-67741


Synopsis


Case Information

UID:
2004-028-516
Claimant(s):
JUAN CARLOS PICHARDO
Claimant short name:
PICHARDO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106211
Motion number(s):
M-67741
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
COLLADO, COLLADO & FIORE, PLLCBY: Andrew J. Fiore, Esq.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Janet PolsteinAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 2, 2004
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

In reaching its decision on the instant motion to dismiss the Claim of Juan Carlos Pichardo, the Court has read and considered the following papers:

(1) Notice of Motion to Dismiss, dated December 4, 2003 and filed on December 8, 2003;

(2) Affirmation in Support by Assistant Attorney General Janet Polstein dated December 4, 2003 and filed on December 8, 2003, together with Exhibits "A-F" (hereinafter referred to as the "Polstein Affirmation");

(3) Affirmation in Opposition of Andrew J. Fiore, Esq. undated and filed on December 15, 2003 with Exhibit "A" annexed (hereinafter referred to as the "Fiore Affirmation").

Filed papers: (1) Claim No. 106211 verified June 13, 2002 and filed on June 13, 2002; (2) Answer verified July 17, 2002 and filed July 18, 2002.

The Claim herein alleges that the Claimant was wrongfully convicted and imprisoned for a period of approximately six years.

On October 18, 1994, the Claimant was convicted of second degree murder, and on November 14, 1994 he was sentenced to twenty years to life in prison. Thereafter, a Motion pursuant to CPL § 440 was filed and the conviction was set aside. On June 15, 2000, after a retrial, the Claimant was acquitted.

The Defendant moves to dismiss the Claim on the grounds that the Claim fails to satisfy the pleading requirements of the Court of Claims Act §8-b; and that the Claimant has failed to show that he is likely to succeed at trial as required by the Court of Claims Act §8-b(4).

Court of Claims Act §8-b(3) requires that the Claimant submit documentary evidence that he was convicted, sentenced, served all or part of the sentence, and that he has been pardoned or that his judgment of conviction was reversed, vacated and that the accusatory instrument was dismissed and he was found not guilty in any new trial. Here the required facts were set forth in the decision of Justice Atlas, annexed to the Claim. Accordingly, the Claimant has met the statutory requirements of documenting his Claim (see Stewart v State o New York, 133 AD2d 112).

Similarly, the Claimant has submitted sufficient facts to demonstrate that he is likely to succeed at trial as required by the Court of Claims Act §8-b(4). All of the exculpatory material that had not been supplied by the prosecution will now be available. The trial testimony of Roxanna Martinez, the wife of decedent Ricardo Martinez, if she is available to testify, will be subject to challenge. Additional witnesses will also be able to support the Claimant's version of the events. Finally, the Claimant's family will testify concerning his whereabouts at the time of the murder. These facts are also contained in Justice Atlas' decision (Notice of Motion, Exhibit A).

Based upon the above, the Court hereby denies the Motion to Dismiss.[1]

April 2, 2004
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims





[1] In view of the Court's finding, it need not discuss claimant's argument that the motion was defective.